Stratton v. Arch Coal, Inc.

United States District Court, S.D. West Virginia, Beckley Division

April 2, 2018

JASON K. STRATTON, Plaintiff,v.ARCH COAL, INC., et al., Defendants.

MEMORANDUM OPINION ORDER

IRENE
C. BERGER JUDGE

The
Court has reviewed the Notice of Attorneys' Lien
(Document 166) and Supplement in Support of
Attorneys' Lien (Document 167) filed by Mr. Stephen
P. New and Ms. Amanda J. Taylor of the Law Office of Stephen
P. New. The Court has also considered the arguments put forth
by the parties during the hearing held on March 15, 2018. For
the reasons stated herein, the Court finds that the request
should be granted and the movants awarded their
attorneys' fees.

The
Plaintiff originally retained the Law Office of Stephen P.
New in November of 2015 to represent him in a wrongful
termination action. The Plaintiff and Mr. New's law firm
entered into a contract wherein the Plaintiff agreed to pay
forty percent (40%) of the gross recovery, plus all costs and
expenses, from any judgment. (Notice of Attorneys' Lien,
Ex. 1.) (Document 166-1) The contract also stated that,
should the Plaintiff desire to “retain another attorney
and dismiss [Mr. New], the [Plaintiff] hereby ASSIGNS,
CONVEYS AND GRANTS, unto the attorney herein, 40% of any
settlement offers plus costs and expenses . . . .”
(Id.) Ms. Taylor and Mr. New litigated the
Plaintiff's case through 2017. On December 22, 2017, the
Plaintiff's counsel filed a Motion to Withdraw from
Representation (Document 163) at the Plaintiff's
behest after the Plaintiff and his counsel could not come to
an agreement regarding certain issues outside the scope of
Mr. New's representation of the Plaintiff in this action.
Specifically, issues arose regarding the Plaintiff's
mitigation of damages surrounding a Kentucky corporation
registered in his name.

Shortly
after filing the motion to withdraw, but before this Court
issued a ruling on it, the Plaintiff retained Jeffrey
Simpkins and proceeded to mediate the case. Through the
course of mediation, the Plaintiff reached a settlement
agreement with the Defendants. It is with respect to that
settlement agreement that the Law Office of Stephen New filed
an attorneys' lien to recover fees and expenses for
services provided. The Plaintiff's new counsel did not
file a written response in opposition to the charging lien or
the supplemental documents in support.

With
respect to the termination of the attorney-client
relationship, the West Virginia Supreme Court of Appeals has
found as follows:

If the contract between attorney and client be broken without
fault on the part of the attorney, he may recover damages for
breach, or on quantum meruit, for the reasonable
value of his services. . . . But, if the
compensation under the contract is contingent on the success
of the suit, and the attorney is discharged without fault on
his part, the measure of damages is not the contingent fee,
but a reasonable compensation for the services actually
rendered.

Clayton v. Martin, 151 S.E. 855, 856-57 (W.Va. 1930)
(emphasis added). In these instances where the compensation
is based on a reasonable compensation for services as opposed
to the contingency fee agreement alone, “the court is
to consider many factors beyond the number of hours devoted
to the case.” Abramson ex rel. Estate of Abramson
v. Laneko Eng'g Co., 370 F.Supp.2d 498, 499 (S.D.
W.Va. 2005) (Chambers, J.). The West Virginia Supreme Court
of Appeals has on several occasions addressed these factors
under different factual scenarios and established a
non-exhaustive list that includes the time and labor
required, the difficulty of the question, the requisite
skills required to perform the job, the customary fee,
whether the fee agreed to was fixed or contingent, the
experience and reputation of the attorneys, and awards in
similar cases. Id. at 499-500; Syl. Pt. 3,
Stafford v. Bishop, 127 S.E. 501 (W.Va. 1925);
Statler v. Dodson, 466 S.E.2d 497, 505-06 (W.Va.
1995); Kopelman and Associates, L.C. v. Collins, 473
S.E.2d 910, 920-21 (W.Va. 1996).

Here,
the Plaintiff contractually agreed to compensate Mr.
New's firm by a contingency fee of forty percent. The
Court finds that the contractual language of the parties is
controlling and that the agreed-to forty percent of the
settlement plus the reimbursement of expenses is a reasonable
compensation[1] for the services rendered by the Law
Office of Stephen New. Upon entering into a contractual
relationship with Mr. New's firm, Mr. New and Ms. Taylor
substantially contributed to the Plaintiff's wrongful
termination case. Mr. New's law firm is experienced in
litigation and, upon taking the case, conducted a thorough
investigation of the Plaintiff's claims. Upon removal to
this Court, Mr. New's firm continued to represent the
Plaintiff in a diligent and effective manner, including
successfully defending against a motion to dismiss.

Mr.
New's firm developed a strategy for litigating the case,
took several depositions, responded to motions for summary
judgment, and responded to motions in limine. It
appears that the Plaintiff was completely satisfied with
representation from Mr. New's firm during all of this
work, and did not become dissatisfied until Mr. New informed
the Plaintiff that the firm did not represent him in his
capacity as a representative for other business entities with
which he was affiliated. It was at that point in late 2017,
after the brunt of the litigation had been completed and the
parties were awaiting a ruling on summary judgment motions,
that the Plaintiff became unhappy with Mr. New's
representation and the parties agreed that Mr. New would
withdraw from representation at no fault of his own.

Based
on these facts and circumstances, Mr. New's firm is
entitled to its contractually agreed-upon forty percent of
the settlement proceeds. Mr. New's firm did all of the
work leading up to the mediation, and the Plaintiff and Mr.
Simpkins undoubtedly relied on this work during the mediation
process. Mr. New's firm represented the Plaintiff for two
years, covering all aspects of the litigation preceding the
successful mediation, including motions to dismiss,
discovery, motions for summary judgment and motions in
limine. While the Court cannot assume that Mr. New's
appearance at the mediation would have resulted in the same
settlement agreement, it is fair to assume that it was
largely because of Mr. New's prior work that the
settlement was reached, given that Mr. Simpkins[2] was hired
immediately before the mediation.

Wherefore,
after thorough review and careful consideration, the Court
ORDERS that Mr. New and the Law Offices of
Stephen P. New receive a fee of forty percent (40%) of the
settlement plus costs and expenses for services rendered. The
Clerk of the Court is DIRECTED to pay said
fees and expenses to Attorney Stephen P. New prior to
releasing the remainder of the deposited settlement amount to
current Counsel for the Plaintiff.

The
Court DIRECTS the Clerk to send a certified
copy of this Order to counsel of record and to any
unrepresented party.

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